Duty of care in NSW youth & welfare services [2005]

What is duty of care?

Your duty of care is your legal duty to take reasonable care to avoid others being harmed.

First, you must take steps to identify risks: any reasonably likely harmful effects of your actions and inactions. (The law calls this reasonable foreseeability). This is not crystal ball gazing but using your skills, knowledge and experience.

If you identify a reasonably likely risk of harm, you must take reasonable care in response - perfect care is not required!

The principle of reasonable care recognises that you have limited resources and limited ability to protect people from harm.

What is reasonable care ?

Reasonable care is the standard of care that a reasonable service provider would provide in that situation - not perfect, not slack.

Each situation (and sometimes each client) is different. You must assess the situation and act accordingly. In other words, use your eyes and ears, and your brain!

Whose duty is it?

All people owe a duty of care in some situations. In work situations, it is mainly the responsibility of the employer (the organisation). Employees are generally protected by their employer as long as they follow policies and instructions.

Laws & standards

Laws which set a minimum

Some safety laws are a rough guide to the minimum standard of care eg:

road safety laws

child protection laws.

In each case there may be situations where your duty of care extends to more than these minimum requirements.

Program standards & guidelines

If your funding program has standards or policies you must follow, then a court may give considerable weight to such standards in deciding what is reasonable care in a situation. Examples in community welfare work are various standards and guidelines for SAAP, HACC, disability standards and guidelines and out-of-home care standards & guidelines.

Even voluntary standards or guidelines will carry some weight if from a state or federal department, or possibly a peak body.

Your duty of care might include doing more than following the standards, if in unusual circumstances the standards are not adequate.

In some situations these standards and guidelines might restrict how you fulfil your duty of care. There are standards in some sectors of welfare wortk about the client's:

right to privacy

right to lead as normal a life as possible, including socialising & recreation

right to make their own decisions even if this creates risks (often called dignity of risk),

Such standards require you to balance safety (duty of care) with these other needs of clients.

Laws, standards & guidelines for specific situations

There are other laws, standards, codes and guidelines covering specific situations, such as:

preventing violence: Your agency has a duty of care to minimise the risk of violence. WorkCover publishes voluntary guidelines - see Resources below.

complaints: In all agencies funded by NSW Department of Community Services and/or run by NSW or local government (local councils), complaints handling is monitored by the NSW Ombudsman.

prescribed medications: If you assist clients to manage their prescribed medications, be aware of the Health Department medications guidelines - see Resources below.

child protection: mandatory reporting in the Children & Young Persons (Care & Protection) Act; employment screening laws including the Working with Children Check; (certain types of agencies only) allegations against staff monitored by the NSW Ombudsman.

Laws & standards which limit your duty of care

Some laws effectively put limits on your duty of care - restricting how you fulfil your duty in some way. This is because legislation overrides your common law duty of care if they are in conflict, eg:

NSW & Australian anti-discrimination laws require you (in many situations) to treat people equally regardless of, for example, their disability or mental illness, unless not discriminating would cause you unjustifiable cost or inconvenience.

NSW & Australian privacy laws conflict with safety in some circumstances because privacy laws restrict use and disclosure of information about clients. Where there is conflict between privacy and duty of care, generally your duty of care is restricted to actions which do not breach privacy laws. (Note that in some situations the privacy laws allow disclosure).

NSW public health law prevents service providers from revealing a person's HIV status to anyone else in most circumstances.

NSW tenancy law puts limits on how much landlords (including some SAAP services) can intrude on the privacy and independence of their tenants.

Duty of care is a balancing act

Your duty of care is not an absolute duty to prevent all possible harm. It is a balancing act: weighing up a range of issues before deciding what level of precautions is reasonable in the circumstances. This was explained in a High Court judgement, and reinforced by the NSW Parliament a few years ago.

How the High Court described duty of care

In deciding whether there has been a breach of the duty of care, the court first asks whether a reasonable person in your position would have foreseen that their conduct involved a risk of injury to the injured person.

If the answer is yes, the court must determine what a reasonable person would do to response to the risk. You must consider:

the magnitude of the risk, and

the degree of probability of its occurrence,

the expense, difficulty and inconvenience of taking alleviating action, and

any other conflicting responsibilities which you may have.

It is only when these matters are balanced out that the court can confidently say what is the standard of care.

- Justice Mason of the High Court of Australia in the 1980 case of Wyong Shire Council versus Shirt (146 CLR 40 at 47-48) (paraphrased).

What the NSW Parliament said in 2002

You are negligent in failing to take precautions against a risk of harm if:

(a) the risk was foreseeable (ie. you knew about it, or you ought to have known about it), and(b) the risk was not insignificant, and(c) a reasonable person in your position would have taken those precautions.

When considering what precautions to take, consider, amongst other things:(a) the probability that the harm would occur if care were not taken,(b) the likely seriousness of the harm,(c) the burden of taking precautions to avoid the risk of harm,(d) the social utility of the activity that creates the risk of harm.

- NSW Civil Liability Act 2002: 5B General principles (paraphrased).

Volunteers' liability

Under changes to the law (Part 9 of NSW Civil Liability Act 2002 ), volunteers doing community work are now protected from personal liability in certain circumstances. A volunteer is generally not personally liable while doing community work:

organised by a community organisation, or

as an office-holder of a community organisation.

Community work: is work that is not for private financial gain and that is done for charitable, benevolent, philanthropic, sporting, educational or cultural purposes.

Community organisation includes:

an incorporated body

a church or other religious organisation

a government body.

Main exceptions:

a volunteer engaged in a criminal act

a volunteer significantly impaired by alcohol or drugs (including prescribed medication) and failed to exercise reasonable care and skill when doing the work

a volunteer who knew (or ought to have known) that he or she was acting outside the scope of the activities authorised by, or contrary to instructions given by, the community organisation

motor vehicle accidents.

The agency using the volunteer might still be liable for negligence, depending on the circumstances.

Agencies should apply good policies and procedures in working with volunteers, eg:

Select people who are appropriate to the role. Check referees and qualifications eg. drivers licences. Conduct child protection screening if legally required.

Train volunteers in the skills they need to safely carry out the role.

Provide policies and procedures in an easy-to-read document which is accessible at all times.

Insurance: clearly outline: - what insurance the agency holds and does not hold for the benefit of volunteers - what insurance the agency requires the volunteer to hold - what situations are at the volunteer's own risk.

Supervise and monitor volunteers in order to ensure that their work is satisfactory.

Promote an open culture of feedback and evaluation, including an accessible complaints procedure, to help management identify unsatisfactory work.

Train, counsel, warn and when necessary dismiss volunteers for unsatisfactory work or misconduct.

Take all reasonable steps to ensure the safety of the volunteer and everyone else.

When people put themselves at risk

The law says that, when people knowingly put themselves at risk, the duty of those around them is lower, sometimes non-existent. The concept is called contributory negligence - where the injured person has contributed to their own harm. The tricky bit is the word knowingly : An adult or teenager of sound mind will know that all sorts of actions are risky, eg:

getting out of a moving vehicle

climbing onto the roof of a building

diving into shallow water

hitchhiking

but some people do not understand these risks, because they:

are a young child

have a psychotic illness or are having a psychotic episode

have dementia

have an intellectual disability

have some other condition which impairs their understanding.

When a person chooses to do something which puts themselves at risk, but does not understand the risks, those around them still have a duty of care. The easiest way of understanding this is to think of young children, who choose to do all sorts of risky things - we expect those around them to still fulfil their duty of care because the child does not understand the risks.

This can be a difficult issue for welfare workers in practice. Clients' mental abilities vary enormously, and may even change from day to day. And unlike childcare workers, welfare workers working with adults and teenagers may not have the right or the ability to stop a client from taking risks, eg. by physically restraining them.

A good practical guide to these dilemmas is Duty of care - Who's Responsible? A guide for carers supporting people with disabilities (see Resources below).

Duty of care & traffic accidents

Drivers owe a duty of care to all other drivers, passengers and pedestrians. Some of the more common breaches of the duty to take care:

driving too fast for the circumstances

failing to keep a proper lookout for other traffic and road users

driving with insufficient control - eg. because the driver is under the influence of alcohol or drugs.

Your duty of care while driving for work, including transporting a client, is basically the same as your duty of care while driving in your private life. If an accident occurs in a welfare work situation, legally this is little different to any car accident:

the police will assess whether to charge any drivers with traffic offences

anyone who is injured (including your client) might make a claim for compensation against the driver at fault

anyone whose property is damaged (eg. the owners of the vehicles involved) might make a claim for compensation against the driver at fault.

Compensation claims are usually covered by these insurances:

injuries to people (other than the driver at fault) - Compulsory Third Party (CTP) green slip insurance taken out, with their registration, by the owner of the vehicle at fault

injuries to the driver at fault: - Workers Compensation insurance if the driver was a paid employee performing work duties, on an authorised break (eg. lunch), or on the usual route to or from work, at the time - Volunteers Personal Accident insurance if the organisation has it to cover this situation - optional driver-at-fault top-up insurance if the owner of the vehicle has this cover

damage to vehicles and property (other than the vehicle at fault) - Comprehensive Insurance or Third Party Property policy of the vehicle at fault, if the vehicle has either of these insurances. If not, claims may be made directly against the driver at fault in court.

damage to the vehicle at fault - Comprehensive Insurance policy of the vehicle at fault, if the vehicle has this insurance.

Things to be aware of:

Different insurance companies' Comprehensive policies have different rules about when you are insured while driving your own vehicle for work.

Some employment contracts and workplace policies have clauses relating to vehicle insurance

Insurance is very complex legally so do not rely on the information here - get advice eg. from an insurance broker or lawyer.

For more information see (in Resources below): Safety Pack, Insurance fact sheets, Insurance: What's it all about?, The Law Handbook, and Model Policies (the section on Vehicles).

Duty of care on outings

What is your responsibility when you take clients on outings, and a client leaves the group or doesn't meet up at the agreed time? It depends on the vulnerability of the client in that situation. Below are 2 examples. Every client and every outing is different, and your ability to prevent such an occurrence, or to respond when it does happen, may be limited, so you have to judge what is reasonable in the situation.

Young child, or person with a disability

A young child or a person with a disability who cannot get themselves home safely, goes missing from the outing.

This client is quite vulnerable in this situation so your agency should have procedures in place to minimise the chance of this happening. If the client does go missing, clearly someone (eg. you, their carer or guardian and/or the police) must try to find them.

Teenager

An average teenager who can easily get themselves home, decides to go off by themselves.

The situation may be different - the risks are lower, and the person has freely chosen to leave your outing. Every situation is different, but your duty with average teenagers would probably include things like:

Set clear expectations in advance.

Make sure everyone has your phone number and a phone (or cash), and knows how to get home themselves.

With younger teenagers: notify a parent or guardian if they leave the group, if that is what you have told young people and parents you will do.

Contact the police if you have serious concerns for the safety of the person.

Resources on safety, duty of care, privacy & law in NSW welfare services

Working with young gays and lesbians? The legal guide for health, youth & community organisations, local councils & funding providers in NSW (2002) Hawkesbury Nepean Community Legal Centre (02) 4587 8877

Published: 2005.

Applicable to NSW youth services (non-government agencies & local councils) providing accommodation, welfare, social or recreation services. May not be consistent with laws and guidelines in schools, out-of-home care or health services. "young people" - aged approx. 12-25 years old (unless stated otherwise).

Be careful! Youth Action and the author took reasonable care to ensure that this information is correct. However government regulations, laws and standards are complex and changing constantly. The author/s have no health, occupational health and safety, or legal qualifications (unless stated), and information provided is general - it is not specific legal or professional advice. Do not rely on it - check with other publications and authorities and if necessary get qualified legal or professional advice for your situation.

Copyright 2005 Nick Manning. You can: a) quote small amounts of text if you acknowledge the author, publisher, web address & date; b) print out multiple copies of this web page but only if you print the whole web page. No other use permitted without prior consent. Do not put large amounts or all of the text in any other document, including: a policy & procedure manual; a presentation (eg. Powerpoint); a training/learning resource book (eg. for TAFE); a web page.